THE CASE FOR PROSECUTIONProsecutions case
can be summarised as follows. That the accused had been seen drinking beer
with others including the
Deceased at the house of one Timothy Feru on the
evening of the 20th April 1998. Sometime later that night the
accused and the Deceased got into a taxi driven by Henry Faoga, one of the
persons who had been drinking at Feru’s house, and driven to a lonely
stretch of road at Ngossi Valley and dropped off. Prosecution
alleges the
accused killed the deceased before walking to James Roni’s house located at
Ngossi Ridge some distance away
from the scene of the murder later that
night. The body of the deceased was discovered by a passer - by early the
next
morning and reported to Police.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
THE CASE FOR THE DEFENCE.
The accused doed does
not deny he was with others and the deceased drinking beer at Timothy Feru’s
house on the afternoon
of the 20th April 1998. He states however
he left the drinking party quite early in the evening at around 6.30 pm and
returned to
his house at Kaibia, behind Vavaea Ridge. He denies any
knowledge of the murder of the deceased and disputes the allegations
of
Prosecution as untrue.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
THE EVIDENCEan>
The evidence adduced by
Prosecution can be divided roughly into six groups. The first - group’s
evidence deals with the
happenings at the house of Timothy Feru (actually
the house belonged to the Prison Adviser, Bill Guyanan and Feru was looking
after it whilst the Prison Adviser
was away) on the afternoon and
evening of the 20th April 1998. Three witnesses were called to
give evidence on this. This groups evidence will be contrasted with the
evidence
of the accused and his witness as they both relate to the same
events.
The second group consists of
thcial evidence of one witness, the taxi driver, Henry Faoga aoga who took
the accused and
the Deceased in his taxi and dropped them off at a lonely
stretch of the road at Ngossi Valley near the scene of the murder
where the
body of the Deceased was discovered the next morning.
The third group consists also
of the crucial evidence of one witness, James Roni aw the accused when
h he called into
his house at Ngossi Ridge at the night of the alleged murder
of the Deceased.
The fourth group consists of
the virtually undisputed evidence of one witness, Barnabus Torio, who
discovered the body
the next morning on his way to work at one of the houses
located further up the area.
The fifth group is the evid
of Police witnesses carrying out investigation into the murder.
The sixth and final group is
the evidence of octor who carried out post - mortem examination of the
body and prepared
a report on the cause of death.
The eviden the other hand
of the “A” and his witness differs essentially from Prosecution evideevidence in
terms of the
timing of events which occurred in the early part of that
evening. The “A” estimates the time he left the group at PW1’s residence
at
about 6.30 pm. DW1’s evidence seems to lend support to his version.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
THE FIRST GROUP’S EVIDENCE.
Timothy FPW1), Tome Kiki
(PW4), Benson Tova (PW8) and Henry Faoga (PW2) gave evidence in one wone way or
another, of the
events which occurred that afternoon and evening, between
about 3:00 pm and 12:00 midnight on 20th April 1998. It is
important to appreciate that the times mentioned in the evidence of these
witnesses were very rough
estimates as most of them did not have any watch
and for those who did have watches did not take note of the time, not
anticipating that what occurred that part of the day was going to be
scrutinised in detail in court. The times given therefore
may be out by as
much as one or two hours.
The first group’s evidence
present the prosecution version of what happened tvening. The accused
a and his witness
on the other hand present a different version of the events.
The following facts have been deduced from the evidence before
this Court.
Where there is dispute I have sought to make rulings on them.
In the afternoon of the 20th
April 1998, at about 3:00 pm, the following people were present in the
sitting room of Timothy Feru’s (PW1) house drinking
beer: PW4, a person
called Robert, PW1 and his wife. They had twelve VB cans of beer to share
around them. This is what
I refer to as the first set of beers. The person
called Robert then excuses himself and leaves the house. Thereafter one
person by the name of Solo (he is the brother of the deceased and
referred to also as the “black boy”) arrives at the house. His arrival
coincided with the same time their beers ran out.
PW4 and Solo then decide to go
and look for Robert at that point of time. They went down to Point Cruz
wharf. At Point
Cruz wharf near the Police Post, they saw the “A”. They
hailed a taxi and all three got in. This was cab A6719, driven by PW2.
Note
slight variation in versions but of little significance. “A” says he was
picked up by the other two - consistent
with version of taxi driver. “A”
describes Solo as the “black boy”.
They drove to NPF to collect
he Seaman’s record book of the “A” and then to Dr. Ramo’s residence to buy
some beer.beer. It
is not clear whether Dr. Ramo has a retail licence to sell
beer but there is clear evidence before this court, undisputed,
that beer
was sold and obtained at his residence at the Central Hospital on the said
date (20th April 1998). The Honiara Liquor Licensing Board or the
Police might like to check on this person if nothing has been done to
date,
whether he has retail licence to sell beer or not. Transcripts of evidence
are available for use should these be
needed. Thirty bottles of SB beer (1
crate and 6 bottles) were obtained on credit by the “A” and taken to the
taxi. This
is the second set of beers. The “A” pawned his Seaman’s record
book, promising to pay in a couple of days time. The group then
travels to
PW1’s residence arriving at about half past three or four o’clock. The “A”
and Solo dropped off whilst PW4
and the taxi driver continued on to Rove to
get some cigarettes, and on to White River to drop off some bread for PW4’s
family. They returned thereafter to PW1’s residence. Time taken was roughly
estimated at half an hour. Could be longer.
All witnesses in the first group
and “A” roughly agreed on time of arrival of PW4 and PW2 on their return to
PW1’s residence
as roughly four o’clock. Persons now present at that time
were, PW1, his wife, PW4, PW8, a woman called Daisy, and Solo. PW2
(the taxi
driver) did not join the group on this occasion. After dropping off PW4 he
drove off again to continue his
work. PW2 puts the time he left PW1’s
residence at about 5.30 pm to 6.00 pm. The others estimate the time at
around 4.00
to 4.30 pm. It is important to appreciate what occurred around
that time is not in dispute; from 4.00 pm to 6.00 pm. Note the
accused is
known to PW1. He recognised him because he used to work for Markwarth
Shipping Company when PW1 worked for
Government Supplies.
At about 6.00 -7.00 pm, the
second set of beers were finished. PW4 and the “A” then set off to get some
more beers; the
third set of beers. Both PW4 and PW1 estimate the time they
went out as between 7.00 and 8.00 pm. PW1 states he cooked rice
and chicken
at about 7.00 pm. According to the “A” version of events on the other hand,
the time they went out for this
second set of beers would have been sometime
between 4.30 pm and 6.00 pm. PW8’s evidence of the timing of events is not
very helpful as he did not seem to take much note of what was happening
around him especially in the early part of that
evening. PW2’s evidence is
more consistent with the evidence of PW4 and PW1 regarding the time the “A”
and PW4 went to
get some more beers at a “private beer outlet” behind the
Point Cruz Refilling Station opposite the Friendship Supermarket.
PW2
estimates the time he met up with the “A” and PW4 outside the private beer
outlet at between 7.00 to 7.30 pm. Again
the Honiara Liquor Licensing Board
or the Police may be interested to check out on this beer outlet, if nothing
has been
done to date, whether they have a retail beer licence or not. PW8
was a police officer at the time of the purchases and I think
still a police
officer at time of this judgment, so may be able to provide useful
assistance to the Police and the Honiara
Liquor Licensing Board about the
activities of the private beer outlets identified in this judgment. The
person who owns
the beer outlet was identified in court by his first name,
Stanley. PW4 estimates the time he reached the beer outlet at Point
Cruz at
between 7.30 to 8.00 pm. The “A” estimates the time at 6.10 pm. The timing
here is crucial because it is relevant
to the version of events given by the
“A” on one hand, and on the other, the version of Prosecution. I think it
would
be fairly safe to take judicial notice of the fact that at 6.10 pm,
there would still be plenty of daylight around (unless
of course it was a
rainy or cloudy and overcast day) as compared to the timing at 7.00 - 7.30
pm. Darkness starts to
fall in this side of the world starting from about
6.30 pm to seven o’clock. PW2 states he came around to the Refilling Station
at around 7.00 to 7.30 pm. That respectfully is more consistent with the
timing given by PW4. I reject the version of
the “A” that they arrived at
the Point Cruz beer outlet at about 6.10 pm. I accept the version of PW4 as
more correct
concerning the timing of arrival at the said beer outlet at
around 7.30 pm. This is supported by the evidence of PW2 and is
consistent
with the evidence of PW1 of the time he states PW4 and the “A” left the
house to get the second set of beers.
Again I find no dis
regarding the actual events as described by witnesses and the “A”. The “A”
does does not dispute the
trip made for the second set of beers. The only dispute
relates to the timing. Respectfully I find the evidence given by Prosecution
witnesses to be more reliable and hence I rule in favour of their evidence.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The significance of this ruling
will becomious later in this judgment. In short, it will have a
different bearing
on the description of events as recounted by the “A” and
his witness in their evidence.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The quantity of beer bought (18
SB bottles of beer) at that Point Cruz t is not in dispute. After fter
picking Cab A6719
again, they drove up to PW1’s residence. From here the
version of the “A” differs. He does not dispute drinking with the group
for
sometime on his return but disagrees remaining throughout the party that
night and in particular beyond 6.30 pm.
He states he left shortly after at
about 6.30 pm. I have however ruled on this point that what he said couldn’t
be correct
as they were at the Point Cruz beer outlet between 7.30 to 8.00
pm. The “A” therefore was still at PW1’s residence at around
8.00 pm. The
crucial question of fact then is did he leave at around that time, bearing
in mind he may have been mistaken
about the time? At least, what is clear
about his version is that he left shortly after returning to PW1’s
residence.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
According to PW1’s evidence, on
their rethe same group was present with the new additions of PW2 (tW2 (the
taxi driver)
and the Deceased. The Deceased joined the group at this point
of time. According to the evidence of the “A” it would seem the
Deceased was
already with the group drinking when he first arrived at the house. Although
he says he did not know which
was the Deceased, he referred to three woman
being present throughout. One of them must have been the Deceased. I prefer
the evidence of Prosecution witnesses as more reliable, that the Deceased
only joined the group after the third set of
beers had been purchased.
PW8’dence regarding the
events in the early part of that evening is not very helpful. He . He states he
joined the group
when they drank the second set of beers but after taking
two drinks, he went downstairs to where his wife was. He stayed there
for
the rest of the evening. Him and his wife share the same house downstairs
with the Deceased and her two children.
The events recounted after the
third set of beers had been purchased are crucial to the case for
Prosecution because they
link directly with the events which led to the
scene of the crime where the “A” was last seen with the Deceased on that
fateful night.
PW1 states when the Deceased
joined the group that time, she first sat with him and hred his drink
with heth her. After
sharing two bottles of beer together, the “A” gave her one
bottle of beer to drink on her own. Thereafter the Deceased moved
over and
sat with the “A”. He states they engaged in conversation together using the
language of the “A”. The Deceased
had been married to a man from Malaita, it
appears from the same language group the “A” belonged to, hence the reason
why she was able to converse in the language of the “A”. PW1 describes the
language used as that of the Fataleka People.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Some time later, PW4 and PW2
leave to buy some more beers. This is the f set of beers, consisting oing of
twelve bottles
of SB beer, obtained from the same beer outlet at Point Cruz.
PW1 and PW4 confirmed this in evidence.
PW1 states in his evidence that
around this time when the fourth set of beers were br in to be
consumed, ted, the “A”
and Deceased went out onto the verandah of the house and
then downstairs to the room or house where the Deceased lives. PW2
confirms
the “A” and Deceased went downstairs when the fourth set of beers were
nearly finished. PW4 also confirms the
same movement as occurring towards
the close of their drinking party. He was more specific when he said the two
went
downstairs when only about six bottles of SIB beer were left.
The next important which
happened that night was the scene at the close of the party. The “A” and
Deceased were
already outside at this point of time. PW2 decides to leave.
PW1 estimates the time at about twelve midnight. PW4 who had a
watch states
he happened to have a look at his watch at that time and it was 11 o’clock.
PW4 and PW2 came out together
ed by PW1 PW1 states he came down the ladder
and stopped about half way down, at accompanied position marked by an arrow
in photograph 3 of the second set of Photographs marked as Exhibit 3. In the
sketch submitted as Exhibit 1, this is the
position marked “B”. He states
PW4 went all the way down to the taxi parked outside the house to see PW2
off whilst PW1
only stood at position “B” on the ladder (see Exhibit 1). PW8
and his wife were sitting outside in front of the Deceased’s
house at
position marked “BD” in Exhibit 1.
ass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
PW4 confirmed in
evidence that he went downstairs with PW2 to sm off as he was leaving.
g.
He confirmed PW1 and his wife
followed them out of the house. PW2 estimates
the time he stood up to leave at about 10.00 o’clock. He confirmed the
others in the house followed him out as he went out. He observed the “A” and
Deceased were sitting outside when he walked out
to the vehicle. PW8 had
been vague in his evidence regarding the early part of that evening but when
it came to the closing
part, he was quite clear and certain about what
happened. He confirmed seeing the “A” and Deceased getting into the taxi and
being driven off by PW2. In total there were at least four witnesses, PW1,
PW4, PW8 and PW2 who personally witnessed
the “A” and Deceased getting into
the taxi and being driven off. I do not hesitate to accept their evidence as
true and
correct. I have no reason whatsoever to reject their evidence.
I will now deal with the
evidence of DW2, David Kio separately. This witness at the time of the
incident lived with PW1
at the servants quarter of the Prison Adviser’s
House (referred to in this judgment as PW1’s house). He estimates the time
he arrived back at the house at about 5.00 pm. On arrival he says he saw
PW1, his wife, the Deceased, two other men and
the “A” drinking. He says PW4
was not present when he arrived. Only PW8 was there. He joined the group
drinking. He recognised
the “A” as he used to work in the ship Mavo, when he
worked at the wharf. This witness states he was then given some food to
eat
and so went to the kitchen to eat his food. By the time he came out, the “A”
had gone. He estimates the time to be
around 6.30 pm. Interestingly he says
it was already dark at that time. He sat with the rest of the group until
about
nine o’clock when everybody left. He then went down to the Mendana
Hotel for some more drinks at about ten past nine. By then,
no one was
around the house. This witness states he was aware of the time from a radio
which had been turned on at the
house.
The issue of the credibility of
this witness is of direlevance to the Prosecution case. In
cross-examinatiination this
witness states he was already in the house when the
“A” came. This is contrary to what he said in chief. In re - examination,
he
confirmed that what he said in cross –examination was the correct one. He
was also cross - examined over his antecedents
which consisted of some five
pages. His first conviction was recorded way back in 1963 and the list goes
on to the present.
At time of giving evidence, this witness was serving a
sentence of four months for simple larceny. When his credibility is
weighed
against the credibility of Prosecution’s witnesses, I have no hesitation
whatsoever in rejecting this witness’s
evidence outright. I do note there
was some mention in the evidence of Prosecution witnesses of the time DW2
appeared
at the house, but this was observed more in the later part of the
evening. No one mentioned his name as being present in the
early part of the
evening. Further his appearance appeared to be only fleeting. He was never
regarded it seems as part
of the drinking group that night. If his evidence
concerning the time he was given food is compared with the
evidence in which PW1 states he cooked chicken and rice, he couldn’t have
been given food at anytime earlier than 7.00 pm. PW1 states he cooked food
at around 7.00 pm. Also when compared with the timing
given by Prosecutions
witnesses, and that of the “A’, the “A” would still have been at the house
at 6.30 pm. The “A”
couldn’t have left the house at around 6.30 pm because
him and PW4 went down to get the third set of beers at around 7.00 to
7.30
pm. The “A” therefore was still at the house at that time. I do not believe,
and do not accept the version of this
witness and that of the “A”, that by
6.30 pm the “A” had left the house. That would mean the “A” and PW4 would
have arrived
back at the house after getting the third set of beers and
consumed them by 6.30 pm. The evidence of Prosecution witnesses
on this is
fairly consistent and solid. Under cross - examination they remained firm
and unshaken. They were also consistent
throughout. I accept there may have
been some minor discrepancies on the timing of events as they happened, but
the basic
description of events as they occurred remained consistent
throughout. Respectfully, I find the version of the “A” as to the
timing of
events unreliable and inconsistent with the timing as explained by
Prosecution witnesses. I prefer their version
as more reliable, accurate. On
the evidence of the “A” that he had left PW1’s house by 6.30 pm, I find that
to be untenable,
far-fetched and incredulous. Compared with the clear,
precise and consistent evidence of Prosecution witnesses, the “A” evidence
concerning time he alleged to have left the house simply cannot be accepted.
The evidence adduced by Prosecution is simply
too precise, clear and
consistent throughout. I am not satisfied either, they could have been
mistaken.
The lngs in and around the
house were more than adequate. A locus in quo was taken aken of the house
and the security light marked in photograph no. 2 of the second set of
photographs was identified.
I am more than satisfied that security light
would have provided ample lighting outside, in particular on the spot where
the taxi was parked. There was no suggestion raised that it might not have
been turned on that night. I am satisfied there
couldn’t have been any
doubts about who went into the taxi when PW2 drove off. The “A” was
not a stranger to PW1 and PW4. He was known to them from previous
interactions.
There couldn’t have been any possibility of any mistake in
identification.
<
As to tggestion that there
might be any scheme or plan to put the blame on the “A”, there isre is simply no
evidence to
support any such suggestion. I have thought carefully about any
possibility that the Prosecution witnesses might be lying about
the events
that night but again cannot help but come to the inevitable conclusion that
those witnesses had no reason
to lie as compared to this “A”. I have had the
opportunity to observe the Prosecution witnesses in the witness box
carefully
as well, and come to the clear conclusion that none of them had
any interest or desire to falsely implicate this “A” in any
way. They were
simply carrying out their duty as witnesses, to speak the truth in as far as
they could recall the events
of that fateful day.
CONCLUSIONS OF FACT WITH
REGARDS TO THE EVIDENCE OF THE FIRST GROUP OF PROSEN WITNESSES.
>
Both the “A” and his witness
claimed the “A” left at around 6.30 pm. I have analysed and assessed the
evidence of Prosecution
witnesses as compared to the evidence of the “A” and
his witness carefully, and come to the clear conclusion that the “A” did
not
leave the house at the alleged time. There was ample evidence by Prosecution
witnesses, and which I accept as true
and correct, that the “A” stayed
throughout the party that night with PW1, his wife, PW2, and PW4, and was
seen by the
same group including PW8 and his wife, who were sitting
downstairs, going off in a taxi. There can be no doubt in their minds
about
their recollections and what they observed that night. There had been some
suggestions put to these witnesses that
they might have been too drunk to
recollect things clearly and correctly, but to that these witnesses were
very firm
and clear. I too have little doubt about their recollections, and
the correctness and truth of their evidence. The evidence
of the “A” and his
witness too have hardly raised any doubt in my mind as to the accuracy of
recollection of events given
in evidence by those witnesses and their
veracity. This brings me to the next crucial event which occurred that
night.
FROM THE HOUSE TO THE QUARRY -
THE CRUCIAL EVIDENCE E SECOND GROUP.
All Prosecution witnesses said
the “A” and the Deceased got into the taxi and were driven off. With that
there can be
no doubt. There were some, what I would regard as, minor
discrepancies in witnesses evidence, regarding the position of sitting
in
the vehicle. It was put to PW1 that in his previous written statement made
to Police on 21st April, 1998, this was the very next day after
the incident, he had stated that both the “A” and Deceased got into the back
seat together. In his evidence before this Court, he stated the Deceased of
into the front seat beside the driver whilst
the “A” got into the back seat.
In his explanation, PW1 stated he was still emotionally upset by the death
of the Deceased
at that time and so did not recall exactly where the
Deceased got in. PW2, PW4 and PW8 however were all consistent throughout,
that the Deceased sat in front whilst the “A” sat at the back seat. I am not
satisfied the discrepancy raised amounted
to any significance as to whether
the Deceased and “A” were seen getting into the taxi together. It is a fact
accepted
by this Court as true and correct the “A” and Deceased got into the
taxi and were driven off.
As to the time the party ended,
three different times were mentioned; 10.00 pm, 11.00 pm and 12 mid - night.
Respectfully
I find little significance to be attached to these
discrepancies in time. PW1 and PW2 gave rough estimates of what they thought
the time was. Only PW4 gave a time which was based on his watch. I prefer
the time given by PW4 as more reliable. Also
I note PW8 was due to leave for
night shift duty at 12 mid - night. He had not gone yet at that time. At
least, the basic
description of event which happened at the close of the
party, given by those witnesses was consistent throughout. The party
most
definitely closed at a later part of the night.
Only one other Proson
witness observed the direction of travel of the taxi as far as
hi his eyes could see that night, as it left the house. This was PW1. He stated
the taxi turned left towards St Johns
as it drove out of the driveway, then
made a further left turn as it entered the main road and drove in the
direction
towards Rove. This is consistent with the evidence of PW2 with
regards to the direction of travel he took that night.
PW2 dropped off the “A” and
Deceasea very lonely and isolated part of Ngossi Valley. A locu>locus in
quo was taken off the site after the court hearing. There are hardly any
houses located along that stretch of the road which branches
out from the
side of the main Ngossi road. It goes in for several kilometres from the
main Ngossi Road. The spot where
PW2 stopped his taxi and dropped off the
two was where some digging for gravel appears to have been done at the side
of a hill, hence the description “the Quarry”. Truly it was an isolated
spot, and more so at night. According to PW2 it was
his first time to go
along that stretch of the road and he was himself feeling scared having to
drive along that lonely
stretch of the road at that very late hour in the
night. PW2 states he suggested to drop off the two further up the road but
the “A” insisted he drove on. It appears the “A” might have been to that
place previously as he was the one directing
PW2 where to go.
It portant to bear in mind
the evidence of PW2 regarding the trip to the Quarry and back back again to PW1’s
house, as
being virtually unchallenged. PW2 states the Deceased fell asleep
on their way to the Quarry. On arrival, the “A” woke the
Deceased up and
told her to get out but she refused. He observed the Deceased appeared
frightened and refused to go out
of the vehicle. The “A” therefore had to
grab hold of the Deceased and drag her out of the car. PW2 states he asked
the
“A” for $10 - 00, being the fare promised for bringing them to that spot
but the “A” told him he had no money to pay him. He
states he did not argue
further with the “A” as he was drunk and he was concerned he might damage
his vehicle. As soon
as they had gotten out of the vehicle he reversed and
drove off. PW2 stated the Deceased struggled with the “A” as she was
dragged
out of the vehicle. He pointed out he could see this from his vehicle lights
which were on throughout.
After dropping them off, he
drove straight back to the house and informed them where he dropped the two
off before heading
home. This was confirmed by both PW1 and PW4. Both were
still awake when PW2 returned. They gave slightly differing versions
as to
what PW2 told them. PW1 said PW2 told them he dropped those two off on top
of Rove at Ngossi. He then asked for
some more beers for those two and added
he would go back and check them later. PW4 on the other hand says PW2 told
him
he dropped the two off at Tasahe. He then asked for some beer for
himself but told there was none. He then said he would drive
home and return
the vehicle to the owner. Whilst there may be some slight differences in
what was heard, I am not satisfied
this amounted to anything of
significance. It should be borne in mind PW2 had stated in his evidence it
was his first
time to go to that area. The general area of description
referred to was consistent with where PW2 dropped them off.
THE CREDIBILITY OF PW2.
PW2’s evidence is crucial to
the case for Prosecuas his evidence placed the “A” directly at the
scene cene of the murder
at a very lonely spot at Ngossi Valley, alone with the
Deceased, at a very late hour in the night and in circumstances which
could
only point to this “A” as the person who killed the Deceased, if his
evidence is accepted.
This raises the crucial
question whether any reasonable doad been raised in my mind bind by Defence
that this witness
might be telling lies to this Court, or that his evidence
should not be accepted and not believed? I have had the opportunity
to
observe and listen carefully to the evidence of this witness when
he examined in chief, under cross - examination and when re - examined, but
have not been convinced to the point
where a reasonable doubt exists in my
mind that he may have been telling lies or that his evidence should be
rejected.
He was very frank, clear and consistent in his evidence about what
happened that night. He denied he was too drunk to remember
anything clearly
or that he might have been mistaken. He only admitted to taking about three
bottles of beer. That has
not been challenged. The fact he could drive must
necessarily imply he was not too drunk to recollect the events of that
night. In any event I am not satisfied this witness was so affected by
alcohol to the extent his evidence should not be
accepted and or believed.
On the other hand, could he
have been mistaken about hiervations that the Deceased refused to go
out and thad that she
had to be forcibly removed out of the vehicle by the “A”.
Again, there had been no challenge to his evidence. He pointed out
the
vehicle lights were on when he stopped to drop off the “A” and the Deceased
and could see clearly therefore what
was going on. I have little reason to
doubt his evidence. Note the Deceased sat next to him and so he would have
been
able to see things reasonably well.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The spot whereropped the
two off was not far from the spot where the body of the deceased was foundfound
the next morning
by a passer-by. It was located some distance away from a
footpath which goes past that Quarry up the side of the hill to some
houses
further up beyond that hill and Quarry. It was that foot path which PW3 was
following when he saw the Deceased.
A trail of blood and discarded clothes,
a bra and blouse, and a blood stained VB can lead to the spot where the body
was found.
Could PW2 have falsely
implicated the “A” out of spite and revenge for a previous killing at Point
Cruz Wharf some time
back in which a relative of this witness had been
killed by someone from the tribe of the “A”. This was a suggestion put
forward by the “A” as reason for this witness to come all the way to Court
and implicate the “A”. With respect, I find
this suggestion completely
unfounded and mere conjecture. There has been no suggestion or evidence
whatsoever, of any
animosity shown to this “A” by this witness or even PW4,
from the moment he was picked up near the Police Post at Point Cruz
Wharf,
throughout the party that night, and right up to the time he was dropped off
at the Quarry. None of the Prosecution
witnesses were ever asked whether any
hostilities were shown to the “A” during the party that night which might be
evidence
of some scheme or plan to get even with the “A”. To the contrary,
the evidence as portrayed by Prosecution witnesses, showed
nobody suspected
that anything would happen to the Deceased. Their going out together that
night was all part of their
own private plan and PW2 was only doing what he
was requested to do by the “A”. I find nothing in that to support any
suggestion that it was all cooked up by PW2 to falsely implicate the “A”. I
accept the evidence of this witness in its entirety
as correct and true.
THE THIRD GROUP OF WITNESSES.
lass="MsoNormal" style="margin-top: 1; margin-bottom: 1">
1">
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
The evidence is third
group of witnesses consists of the evidence of one witness, PW10, Mr. James ames
Roni. PW10 was
a former Permanent Secretary in the Public Service, an
educated, mature and elderly person in the Community. His evidence is
also
crucial to the Prosecution case, because it relates to a visit to his house
late that fateful night by the “A”,
supposedly after he had killed the
Deceased. The credibility of his evidence is vital as it forms part of the
missing
pieces in the puzzle which provide a vital link to the movements of
the “A” that night and help to place him in the vicinity
of that area that
night, when compared to his outright denial.
The “A” claims the said visit
was a mere fabrication is witness to have revenge on him for inter alia,
num numerous grievances
he had been caused by this witnesses tribe in the past.
Some of these included, failing to vote for him in the last general
elections, refusing to support him in numerous proposed developments in
their area for mining, tourist orientated activities
and logging activities.
The “A” states because of these grievances, he does not get on with this
witness and does not
and would not have paid any visit to his home at any
rate.
PW10 on the other hand denies
knowledge of such allegations and any bad relationship betwhem, adding
it was hias his first
time to hear about them in court. He gave very clear,
simple and frank evidence of the events recalled that night. He and his
family had already gone to sleep when he was awakened by his wife that
someone was calling for him outside. When he came
out, he saw the “A”. The
“A” is well known to him because he is related to him. He had been to his
house on previous
occasions. He says he went downstairs to talk with the “A”
and ask him what he wanted. The “A” told him he was just out for
a walk and
wanted to come and talk to him. PW10 states the “A” asked him about their
home but that he wasn’t keen on
telling stories that night. He states he was
unwilling to tell stories with the “A” because it was already late at night
and secondly he noticed the “A” smelt of beer and he felt it was no use
talking to such a person. He told the “A” to leave
after talking with him
for about five or ten minutes. Before leaving, the “A” asked for a drink of
water and for directions
to a road through the Botanical gardens. PW10
states he got one of his sons to give the “A” a drink and then pointed out
the directions to that road to him, though pointing out to him it would be
dark. The very next day he heard news of the
brutal murder of the Deceased
at the Quarry.
CRLITY OF PW10
I have had the opportunity of
seeing this witness give evidence in court. Apart from the fact his evidence
is unchallenged,
nothing has been raised by Defence in cross - examination
which would throw doubt or uncertainty on his evidence. His evidence
was
given in a very frank and clear manner, and consistent throughout. I have no
reason whatsoever to doubt the truth
and correctness of his evidence. There
couldn’t have been any mistakes about identity or powers of recollection
because
not only was the “A” well known to this witness but that this
witness could recall very clearly that the very next day the
body of the
Deceased was discovered at the Quarry. He stated it was very big news in
their area at that time. I find
no reason whatsoever why this witness should
come to court and lie about the “A”’s visit that night. I accept the
evidence
of this witness in its entirety.
THE EVIDENCE OF THE FOURTH
GROUPITNESSES.
This is virtually unchallenged
evidence of the witness, PW3, Barnabus Torio who discovered the body of the
deceased early
the next morning and raised the alarm. This witness was on
his way to work and takes the short cut through that area each morning.
His
place of work is located above the hill over that area.
THE EVIDENCE OF POLIC OFFICERS.
This consist of the evidence of
Police Officers in the Criminal Investigation Division involved in
investigating such
serious crimes. Some were evidence of Officers who took
statements of witnesses and the “A”, others of those who drew a sketch
of
the scene, whilst others of the photographs of the scene and body of the
Deceased. A number of exhibits were collected
at the scene (the bra and
blouse of the Deceased) and blood samples obtained not only from the scene
but also from the
house of James Roni. There was some suggestion made under
cross - examination of Detective Inspector Salathiel Sau (PW5), that
when
the “A” visited the house of PW10, he left some blood on the ladder leading
to the house of PW10. There was evidence
which suggested these were sent
overseas for forensic tests. Unfortunately no results have been filed and no
explanation
given. This is of some concern to me as such results should be
made available to the Defence as well as to the Court. If it
was the blood
of the Deceased which were on the “A” after he had beaten the Deceased up,
then that would have been further
supportive evidence against the “A”.
Forensic tests carried out on those blood samples would have greatly been of
assistance
if positive results or identification could have been obtained. I
bear in mind though that this would have depended to a large
extent on the
manner in which the blood samples had been obtained and made available for
examination. I accept there
are bound to be factors which could have
impinged on the results so that at the end of the day it might have been
inconclusive.
Extreme care would have to be exercised by investigative
officers to ensure samples collected are not contaminated by other
factors.
In any event, the omission of those tests results do not affect my findings
that the “A” called in to the house
of PW10 on the night of the murder of
the Deceased.
THE MEDICAL REPORT.
The post mortem report on the
Deceased was provided by Dr. Manf Central Hospital. His reps report
consisted of two parts;
an external examination and an internal examination.
All the serious injuries observed were confined to the head and face of
the
Deceased. The learned Doctor wrote:
“Face was badly altered and
disfigured by injury.
1ged wounds were
identified on the face, with varying sizes. Significant ones are at t at the
lateral aspect of (R) eye
(3 x 4 cm in sizes) and (L) temporal area (4 x 4
cm in sizes).”
The internal examination report
read as fol
“Right facial muscles of
expression and mastication were all smashed.
Maxillary and mandibular
bones were badly fractured at different areas with multiple fragmentation on
both sides. The
jaw was basically shattered.
Tper gums and set of
teeth were completely broken off and hanging loose.
Nasal bone badly fractured.
Anterior third (1/3) of
tongue bruised.
Left ear had a bad rugged
tear through it with blood and CSF in ear canal.
Rugged laceration over the
left temporal area with a bad fracture of the skull.”
In Court, the learned Doctor
gave opinion the wounds could have been caused by “some rugged
type of object.” His best guess was a stone of rugged surface either
thrown or hit repeatedly against the face of the Deceased, or the head held
by hands and hit repeatedly against a rugged stone. The learned Doctor also
gave opinion the magnitude of the force applied
would have to be something
great and big to be able to shatter a bone. In his conclusions the cause of
death was linked
directly to the injuries sustained by the Deceased. I
quote:
class="MsoNoMsoNormal" style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1">
“The deceased EDLYN RASI was
found to have sustained severe blunt trauma to hero her face and head causing
serious fatal
damages to the face and brain, particularly to the brainstem
(Medullar and pons) resulting in cardio respiratory arrest and
death.
Edlyn to the best of my
knowledge died as a t of the brutal trauma infl inflicted on her. "
THE LAW.
The offence of murder is
provided for in sect00 of the Penal Code. It reads:
“Any person who of malice
aforeht causes the death of anot another person by an unlawful act or
omission is guilty of
murder and shall be sentenced to imprisonment for
life.”
The crucial ingredient in the
offence of murder is malice aforethought. Malice aforethoun the laws of
Solomonlomon Islands
is in turn defined in section 202 of the Penal Code. Under
paragraph 202 (a) malice aforethought may be established if there is an
intention to kill, or an intention to
cause really serious harm and as a
result of which the person injured dies.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
APPLICATION OF THE LAW TO THE
FACTS OF THIS CASE.
lass="MsoNormal" style="mar="margin-top: 1; margin-bottom: 1">
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In the facts is case, the
injuries sustained by the Deceased referred to in the medical report
t
(Exhibit 4) speak
for themselves. The injuries could only have been
inflicted by a person with intention to cause grievous bodily harm or death
of the Deceased, unless they were inflicted by a mad man. Respectfully there
is no evidence of any mad man around that
vicinity at that time of the
night. I am satisfied whoever inflicted those injuries had the necessary
intention to cause
the death of the Deceased if not, really serious harm and
as a result of which the Deceased died. Intention in the facts of
this case
can simply be inferred from the brutal injuries observed on the face and
head of the Deceased. But even if
intention is negatived, paragraph 200 (b)
of the Penal Code provides that malice aforethought is also established if
there is knowledge that death will probably result or that really
serious
harm was a likely result. Respectfully, I fail to see how anybody can say
that whoever bashed the head of the
Deceased cannot fail to realise that
death was a probable result or that really serious harm was a likely result.
THE SUBMISSION OF PROSECUTION.
The case for Prosecuttands
or falls on circumstantial evidence. The essence of circumstantial evidence
e
is that before
I could find the “A” guilty of murder, it is necessary for
Prosecution to show beyond reasonable doubt that there was on the
evidence
“no reasonable hypothesis consistent with innocence” (See Martin
Sutarake v. Reginam CRA. No. 6 of 1994 judgement delivered on 29th
June 1994, at page 7; also referred to the case of
D.P.P. v. Togiabae
C. A. 5th March 1986, 30th March 1987. White P.
Connolly, Kapi JJ.A.). See also the recent case of Regina v. Alwin Paul &
Pye Roberts CRC. No. 27 of 1997 judgment delivered on 7th May
by his Lordship Muria
CJ. at page 6
in which his Lordship points out, the whole of the evidence must be looked
at by the Court and before it can enter
a conviction it must be satisfied
beyond reasonable doubt that “there is no other rational inference to be
drawn from the whole of the evidence but that the accused was guilty”.
In Martin Sutarake’s Case (ibid), the Court of Appeal states also at
page 7:
“To state it another way,
there had to be no reasonable explanation of the evidence except that it was
the appellant who
killed the deceased in circumstances amounting to murder.”
One of the crucial submissions
raised by Defence was that there was no apparent motive for the murder. To a
certain extent
there is some substance to this submission. I had earlier
pointed out the Deceased and “A” appeared to have agreed together
on a plan
of their own to go out together that night in the taxi. The
evidence of all Prosecution witnesses who saw them together that night and
observed them getting into
the taxi never suspected that anything drastic
would happen. The Deceased was a willing participant in their private plans
to go out. They had been seen talking together under circumstances which
suggested anything other than animosity or hostility
between them.
There was however also clear
evidence, which I accept, that the Deceased appeared quite drunk when she
got into the taxi.
The observations of PW2 - the taxi driver is consistent
with that evidence because he pointed out the Deceased soon fell asleep
in
the car all the way to the Quarry and only woke up when she was woken up by
the “A”.
COULD HAVE GONE WRONG?
The only direct clues on the
evidence before me which suggest something might possibly hone wrong in
that fatt fateful
trip is contained in the unchallenged evidence of PW2. He
states on arrival at the Quarry, the “A” woke the Deceased up and
told her
to go out with him. It seems at that point of time, there was a sudden
change of mind by the Deceased, because
not only did she refuse to go out
but she also refused to get out of her seat as well. Whatever the reason for
that change
of mind is anybody’s guess. Evidence of a change of mind however
is consistent with such refusal and having to be forcibly
removed. The
observations of PW2 at this point of time is crucial. He notes the Deceased
appeared frightened and that
she had to be forcibly removed from the
vehicle; the “A” grabbing her around the chest and dragging her out of the
car.
He also observed the Deceased struggling with the “A” as he reversed
his vehicle and drove off. This was the last crucial scene
observed by PW2
as he drove off.
Whatever happened therea
nobody knows except this “A”. He has not accounted for his actions as seen
by P by PW2 in any
way at all. At best we can surmise based on the last
observations of PW2.
Would it be too far fetched,
unrealistic, improbable and irrat to say that what PW2 obserobserved as he
drove off was
but part of an unfinished picture or scene? Is there any
reason, to suggest, that the last “picture” seen of those two couldn’t
have
led to the ghastly scene the next morning, where the Deceased was virtually
bashed out of recognition in her face?
Couldn’t the “A” have been
responsible for the death of the Deceased? Is there any other rational
inference to be drawn?
The Deceased was last seen alive in the presence of
the “A” that fateful night by PW2; whose evidence as I had pointed out
had
been virtually unchallenged and whose evidence I accept as true and correct.
That crucial observation requires an
explanation from no one else but this
“A”. Note this is distinct from the burden of proof that Prosecution has to
discharge.
Unfortunately for the “A” he had opted for a blanket denial from
the start and so had nothing to offer. If any, it had been
merely to concoct
some tale why this witness and other Prosecution witnesses may have sought
to falsely implicate him.
Unfortunately, I reject those tales outright. I
observe this blanket denial can be regarded as an easy way out by a person
with a guilty mind or conscience, to simply say “I was not there.
Therefore I have no explanation to offer.” Unfortunately for the “A”, he
was seen that night with the Deceased by PW2, in circumstances which can
only point to one
rational conclusion. Most likely there was a struggle. Sex
as a motive cannot be completely ruled out. This would be consistent
with
the fact that the bra and the blouse of the Deceased were thrown out at
various different parts along the way. It
seems the struggle seen by PW2
continued all the way through to the brutal assault. It would also seem the
refusal or
change of mind of the Deceased observed by PW2 must have been
maintained throughout and resulting in the gruesome assault on
the Deceased
which caused her demise.
Could the Deceased somehow have
met her death by someone else that night? Again the evidence of PW2 is
crucial on this.
He specifically pointed out in response to questions put to
him in examination in chief, that there was no one around the vicinity
that
night. No houses were located close to the scene of the crime as well. They
met no vehicle, and no person on their
way to the Quarry along that lonely
stretch of the road and on his return, PW2 also met no one else going in
that same
direction. That rules out any other rational inference that the
death of the Deceased might have been caused by anyone else
other than this
“A”.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Further, the crucial evidence
of PW10 p the “A” within the general area where the Deceased was
s
murdered. PW10 had
no reason nor motive to lie about the “A”’s visit that
night. He did not know where the “A” had come from that night. He had
no
reason to suspect anything. As far as he was concerned the “A” appeared to
be normal, though he smelt strongly of
beer. The only unusual thing about
the visit of the “A” that night was that they had all gone to bed when the
“A” arrived
and woke them up. He states all other visits made by the “A”
were in circumstances where they were all still awake. PW10 also
pointed out
to the “A” that according to their custom it was not right for him to call
in to their house when they had
all gone to sleep just for a “walk -
about and story”. Apart from the unusualness of that visit that night,
PW10 did not notice anything in particular that might have given
cause for
suspicion. If the “A”’s visit that night was innocent, why should the “A”
want to lie about it and deny it
ever took place? Respectfully, such blatant
lie and denial is consistent with a person who has a guilty mind and
something
to hide, if that was the first place this “A” called in after
murdering the Deceased at the Quarry.
DECISION.
I am satisfied Prosecution has
discharged the onus of proof in this case, off beyond reasonable doubt, ubt,
that it could
have only been this “A” and no one else, who was responsible
for the grievous bodily harm caused to the face and head of the
Deceased and
directly for her death. In the circumstances it is my duty to convict this
accused, David Kwaoga for the
murder of Edlyn Rasi.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
SENTENCE.
There is only one sentence f murder, life imprisonment. The accused is accordingly sentenced to life
imprisonmisonment with
effect from today. Accused has a right of appeal to the
Court of Appeal.
THE COURT
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/sb/cases/SBHC/1999/60.html
